Citation NR: 9704577
Decision Date: 02/14/97 Archive Date: 02/19/97
DOCKET NO. 95-07 773 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to a special monthly pension based on the need
for regular aid and attendance or at the housebound rate.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C.A. Skow, Associate Counsel
REMAND
The appellant served on active duty between October 1941 and
January 1947.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from an August 1994 rating decision of the
St. Petersburg, Florida, Department of Veterans Affairs
Regional Office (VARO).
The appellant is seeking a special monthly pension based on
the need for regular aid and attendance or at the housebound
rate.
The appellant is service connected for residuals of excised
anal fissure with hemorrhoids (0%), scar of the right foot
(0%), and fungal infection of the feet (0%). He is non-
service connection for anxiety state (70%), arthritis of the
lumbar spine, thoracic spine, right elbow and associated
lumbar strain (20%), spastic colitis and duodenitis (10%),
hyperopia (0%), glaucoma and hemorrhagic macular degeneration
(70%), and arteriosclerotic heart disease with cardiomegaly
(30%). His combined service-connected disability rating is 0
percent and his combined nonservice-connected disability
rating is 100 percent.
We note that the law allows for an increased rate of pension
where an otherwise eligible veteran is in need of regular aid
and attendance. 38 U.S.C.A. § 1521(d) (West 1991). A person
is considered in need of regular aid and attendance if the
person is a patient in a nursing home due to mental or
physical incapacity, or is helpless or blind, or so nearly
helpless or blind, as to need the aid and attendance of
another person. 38 U.S.C.A. § 1502(b) (West 1991);38 C.F.R.
§ 3.351. Entitlement to the aid and attendance benefit is
predicated generally on objective evidence that a veteran is
so helpless as to require the regular aid and attendance of
another person. 38 C.F.R. § 3.352(a) (1995).
Entitlement to housebound benefits are generally available
contingent upon the showing that a single permanent
disability is ratable at 100 percent, and that the claimant
is either unable to leave his home or has additional
disability independently ratable at 60 percent or more.
38 U.S.C.A. §§ 1502, 1521 (West 1991); 38 C.F.R. § 3.351(d)
(1995).
Although the appellant requested a special monthly pension
based solely on his impaired visual acuity, the VA must
construe all claims liberally. Therefore, the VA must take
into account all disabilities of which the VA has notice when
considering a pension-type claim. In this case, the only
condition considered was the appellant’s visual disability
when determining entitlement to the benefits sought. Also, a
recent general medical examination with sufficient
information from which to assign a schedular rating to each
disability, physical and psychiatric, has not been conducted.
The VA’s duty to assist claimants in the development of their
claim includes the duty to provide a medical examination when
the medical evidence of record is inadequate. See Littke v.
Derwinski, 1 Vet.App. 90 (1990) and Green v. Derwinski, 1
Vet.App. 121 (1990). As such, VARO should schedule the
appellant for a comprehensive VA examination which provides
sufficient clinical information to properly evaluate the
appellant’s disabilities both physical and psychiatric.
Also, to ensure full compliance with due process
requirements, VARO should readjudicate the claim with
consideration of all the disabilities of record so as to
prevent prejudice to the appellant. Bernard v. Brown,
4 Vet.App. 384 (1993).
Accordingly, this case is REMANDED to VARO for the following
action:
1. The appellant should be asked to
provide a list with the names and
addresses of all medical care providers
who have treated him for residuals of
excised anal fissure with hemorrhoids,
scar of the right foot, fungal infection
of the feet, anxiety state, arthritis of
the lumbar spine, thoracic spine, right
elbow and associated lumbar strain,
spastic colitis and duodenitis,
hyperopia, glaucoma and hemorrhagic
macular degeneration, and
arteriosclerotic heart disease with
cardiomegaly since January 1993. VARO
should obtain all records of any
treatment reported by the appellant that
are not already in the claims folder.
2. VARO should schedule the appellant
for a comprehensive VA examination to
determine the nature and extent of all
disabilities, physical and psychiatric.
At that time, a special examination for
purposes of determining entitlement to
aid and assistance and housebound
benefits should also be conducted; the
examiner should indicate the effect, if
any, of his disabilities on his ability
to perform daily functions and the
examiner should certify whether or not
the appellant requires regular aid and
attendance. All indicated tests should
be conducted. The claims folder must be
made available for review prior to the
examination.
3. After the development requested above
has been completed to the extent
possible, VARO should again review the
record. If any benefit sought on appeal,
for which a notice of disagreement has
been filed, remains denied, the appellant
and his representative should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
C.P. RUSSELL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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